Official Syllabus Focus
- State and individual
Introduction and Scope
What this topic covers: Modern international law increasingly recognizes individuals as holders of rights and, in some fields, bearers of responsibilities.
What this topic covers: Study nationality, treatment of aliens, diplomatic protection, human rights, refugees and individual criminal responsibility as the main bridges between the state and the person.
Changing position of the individual
Classical international law concentrated on states, but modern international law gives individuals direct rights and, in certain fields, direct responsibilities. Human-rights law, refugee law, nationality, consular protection and international criminal law all demonstrate this change.
The individual nevertheless does not possess the same general legal capacity as a state. International personality is functional and field-specific: a person may hold treaty rights, access a complaints mechanism where one exists, or incur criminal responsibility, without possessing state sovereignty or treaty-making power.
Nationality and diplomatic protection
Nationality is the legal bond between a person and a state under domestic law operating within international constraints. It can affect diplomatic protection, political membership, travel documentation and other rights. Statelessness exists where no state considers a person its national under the operation of its law.
Diplomatic protection is a state-to-state process in which a state invokes responsibility for injury to its national. It is different from a direct individual petition before a human-rights body. Requirements such as nationality of claims and exhaustion of local remedies may be relevant depending on the legal context.
Human rights, refugees and criminal responsibility
Human-rights treaties regulate how states treat individuals within the treaty's scope. Refugee law protects persons who satisfy the applicable refugee definition and engages principles such as non-refoulement. International criminal law can impose individual responsibility for crimes such as genocide, crimes against humanity and war crimes under the relevant legal instruments.
These fields should not be merged. A refugee determination is not a criminal trial, and an international human-rights violation by a state is not automatically the same legal question as individual criminal responsibility.
Core Concepts Explained
- Traditional international law focused heavily on states, but modern law also recognizes individuals as holders of international rights and, in some areas, direct responsibilities.
- Nationality creates a legal connection between person and state and can affect diplomatic protection, travel, political rights and state responsibility. Statelessness concerns the absence of nationality under the operation of national laws.
- Diplomatic protection is a state-to-state mechanism through which a state may espouse a claim concerning injury to its national; it is conceptually different from an individual filing a direct human-rights complaint where such a mechanism exists.
- Human rights, refugee protection and international criminal responsibility show different ways in which the individual has become directly relevant to international law.
| Common confusion to avoid: Do not say that individuals have exactly the same international legal personality as states. Their rights and responsibilities arise in specific legal fields. |
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Preparation and Answer Use
- Prepare diplomatic protection separately from direct human-rights remedies.
- Know basic distinction between nationality and statelessness.
Key Takeaways
Key takeaway: Individuals are no longer treated only as objects of international law.
Key takeaway: Human-rights treaties create international standards for state conduct toward persons.